There is a doctrine in European law that is related to the concept of subsidiarity which the European Court of Human Rights invokes in deciding cases under the European Convention on Human Rights. That doctrine is one that recognizes that large continental human rights courts have to tolerate some reasonable diversity of enforcement among the member units of any such federation. The European Court of Human Rights calls this sphere of ―live and let live‖
toleration a ―margin of appreciation.‖197 The margin of appreciation is the fudge factor by which
197 There is a substantial literature on the margin of appreciation doctrine which includes:
Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002); Eyal Benvenisti, Margin of Appreciation, Consensus and Universal Standards, 31 N.Y.U. J. Int. L. & Pol’y 843 (1999);
George Letsas, Two Concepts of the Margin of Appreciation, 26 Oxford Journal of Legal Studies 705 (2006); Javier Garcia Roca, La Muy Discrecional Dontrina del Margen di Apreciacion Nacional segun el Tribunal Europeo de Derechos Humanos: Soberania e
Integracion, 20 Teoria y Realidad Constitutional 117 (2007); Howard Charles Yourow, The
75
the European Court of Human Rights allows some of the forty-seven member countries to deviate from international human rights norms.
The idea of a margin of appreciation is somewhat less rights protective than is the idea of subsidiarity because the former is a doctrine of judicial deference while the later is a theory of federalism.198 Nonetheless, the margin of appreciation doctrine has come to be recognized as a foundational feature of European Human Rights law. The margin of appreciation doctrine could be described as a federalism discount extended by some national or international courts whereby some regions are allowed to vary from the approach followed by other regions in the
enforcement of rights.
The European Court of Human Rights invoked the margin of appreciation concept in two striking instances in recent years. First, in Leyla Sahin v. Turkey, the European Court of Human Rights allowed Turkey to ban the wearing of an Islamic headscarf in major educational
institutions notwithstanding the European Convention‘s protection of religious freedom.199 The Court reasoned that Turkey faced unusual threats from militant Islamists, and it thus concluded that Turkey had the right to ban the wearing of a headscarf in schools even if in other countries that right might be protected. Second, in Lautsi v. Italy, the European Court of Human Rights also upheld an Italian state policy of displaying crucifixes on the walls of classroom in state run
Margin of Appreciation Doctrine in the Dynamics of European Human Rights
Jurisprudence (1996); Steve Greer, The Margin of Appreciation: Interpretation and Discretion Under the European Convention of Human Rights (2000); Rafaella Nigro, The Margin of Appreciation Doctrine and the Case-Law of the European Court of Human Rights on the Islamic Veil, 11 H.R. Rev. 531 (2010). Professor Calabresi also wishes to acknowledge an unpublished paper written by Pablo Contreras entitled The Margin of Appreciation and the European Court of Human Rights (on file with the authors).
198 Carozza, supra note __, at 69-71.
199 App. No. 44774/98 Eur. Ct. H.R. (2005).
76
schools.200 Once again, the state action was challenged as impairing religious freedom and once again the European Court of Human Rights invoked the margin of appreciation to recognize the cultural importance of the crucifix and of Catholicism to Italy.
We think these cases make a lot of sense for a Human Rights Court that seeks to protect human rights in the forty-seven member Council of Europe. The Council includes an incredibly diverse collection of nations some of which are very secular while others are quite traditional and religious. The Council‘s members include countries with Protestant, Catholic, Eastern Orthodox, and Islamic majorities, and it seems highly likely that tastes, cultural preferences, and real world conditions vary sharply among the Council of Europe‘s 47 member nations. The failure by the European Court of Human Rights to embrace a margin of appreciation would be more likely to torpedo efforts at international human rights protection in Europe than it would be to get
crucifixes removed from classroom walls. Moreover, some cultural variation among the member countries ought to be viewed as being no more threatening than the prevalence of different languages and cultures among these countries. European human rights law bans all across the continent of Europe: 1) the death penalty, 2) water-boarding, and 3) denials of gay rights to have sexual relationships. It is thus hard to see much of a threat to European constitutional freedoms coming from the allowance of national flexibility as to public displays of a religious sort. This is especially true since the European Court of Human Rights did for example protect the right of Jehovah‘s Witnesses aggressively to proselytize in Kokkinakis v. Greece.201
Strikingly, the U.S. Supreme Court has recently taken a similar margin of appreciation approach to issues of religious endorsement. In Arizona Christian School Tuition Org. v. Winn,
200 App. No. 30814/06Eur. Ct. H.R. (2011).
201 App. No. 14307/88 Eur. Ct. H.R. (1993).
77
the Supreme Court made it substantially harder for taxpayers who object to public religiosity to get standing to sue in such cases.202 The Court held that taxpayers did not have standing to sue to block the provision of tax credits by a state to individuals who donate to school tuition
organizations which then provide scholarships to students attending religious schools. This case built on a 2007 opinion in Hein v. Freedom from Religion Foundation203 where the Supreme Court held that taxpayer standing under Flast v. Cohen204 to challenge government religiosity does not apply when the taxpayer is challenging discretionary executive branch action instead of a legislative appropriation. Taken together, the Supreme Court‘s decisions in Hein and in Winn suggest that the Court is moving sharply to cut back on taxpayer standing to object to public displays of religiosity.
We think this is a salutary development. Tastes and cultural preferences vary widely across the United state just as they vary widely among the 47 members of the Council of Europe. Parts of the United States are very religious, while other parts are quite secular. It makes sense to leave state governments and federal executive branch personnel some freedom to engage in religious speech or to facilitate the funding of religious schools so long as the state does not discriminate against people as to their religion and so long as it does not mandate an official state church whose clergy are taxpayer funded. Federalism concerns call for a margin of appreciation to be given here to the state just as the European Court of Human Rights recognizes in Europe.
More fundamentally, we think the margin of appreciation idea counsels against the U.S.
Supreme Court handing down substantive due process decisions like the decision in Roe v. Wade
202 No. 09–987 (U.S. Apr. 4, 2011).
203 551 U.S. 587 (2007).
204 392 U.S. 83 (1968).
78
creating a hitherto unknown and highly specific constitutional right to an abortion. Federal substantive due process is only appropriate where: 1) the right in question is very deeply rooted in American history and tradition such that evidence of it can be seen as long ago as 1868 when the Fourteenth Amendment was ratified; and 2) where the state police power justification for regulating a right seems plainly excessive. This suggests that the Supreme Court got things right in McDonald v. City of Chicago, but it got things wrong in Roe v. Wade.
IV. Conclusion
In conclusion, we hope we have been able to shed some light on why federalism and subsidiarity are both very important concepts when viewed from the perspective of law.
Specifically, the European constitutional ideas of subsidiarity and a margin of appreciation are in our view directly relevant to U.S. constitutional law. The ―substantial effects‖ test of United States v. Lopez is neither more originalist nor is it more law-like than is the idea of subsidiarity, as illumination by a consideration of the economics of federalism. Similarly, the question of when and to what degree the concept of the police power ought to be allowed to trump fundamental rights in the Fourteenth Amendment context is quite indeterminate. Borrowing ideas like the margin of appreciation from European law well worth considering.
The bottom line is that federalism remains very important in U.S. constitutional law as will be shown when the Supreme Court rules on the constitutionality of President Obama‘s national healthcare law and as was shown last summer in McDonald v. City of Chicago. On Friday, June 16, 2011, the U.S. Supreme Court handed down a federalism decision in which Justice Anthony
79
M. Kennedy described the importance of federalism. We close with this quotation for Justice Kennedy‘s opinion for the Court:
Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. . . . Federalism also protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. . . . By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. . . . The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. . . . An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to
vindicate.205
205 Bond v. United States, 131 S.Ct. 2355, 2364 (2011) (as quoted in The Wall Street Journal, Notable and Quotable, June 20, 2011).